Patent-related legal and policy matters
This domain covers the law and policy around the patent: ownership and employee inventions, contracts, supplementary protection, compulsory licences, enforcement structures and Switzerland's position in European patent policy. It rewards precise statutory knowledge more than argument.
Employee inventions, Art. 332 CO
- Inventions made in performance of employment duties and within the employer's business belong to the employer from the outset.
- Inventions outside the duties but within the employer's business must be offered to the employer in writing; the employer must exercise the right within six months, otherwise it lapses.
- Free inventions stay with the employee.
- Compensation under Art. 332(4) CO is assessed on the value of the invention and the employee's share in it; blanket waivers in employment contracts are scrutinised.
Contracts
Assignment of a patent requires written form and should be entered in the register; a licence needs no particular form. The standing of an exclusive licensee to sue depends on the licence terms and on the register.
Term, SPC and compulsory licences
Twenty years from filing, with annual fees from the fourth year. An SPC for medicinal or plant-protection products runs up to five years and is capped at fifteen years from the first Swiss marketing authorisation; a six-month paediatric extension is possible. Compulsory licences are available for public-interest reasons and for dependent patents, granted by the competent court - today the Federal Patent Court.
Enforcement and the European frame
Since 2012 the Federal Patent Court has exclusive jurisdiction over validity and infringement, including preliminary measures, with appeal to the Federal Supreme Court. Switzerland is not an EU member: there is no unitary patent and no UPC jurisdiction over Swiss patents, and no opt-out or opt-in is possible for them.
Worked example
An engineer notifies her employer in writing on 3 March of an invention made outside her duties but in the employer's field. The employer replies only on 20 October. Reasoning: Art. 332(3) CO gives the employer six months from the written notification; the period expired around 3 September, so the right is lost and the employee may file in her own name. Had the invention been made in performance of her duties, the employer would have owned it from the outset and only the compensation question would remain.
Traps
Assuming everything an employee invents belongs to the employer. Missing the six-month deadline. Believing a licence must be in writing. Thinking the UPC can affect Swiss patents. Computing SPC duration from the patent's expiry rather than from the marketing authorisation, and ignoring the fifteen-year cap.